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RCO





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PostPosted: Mon Sep 10, 2018 3:27 pm    Post subject: Reply with quote

cosmostein wrote:
As some would accuse the original decision to cut the city council to 25 as reactionary and not well thought out, I would make the same assessment of the ruling today.

This is a lower court ruling which is almost by design made to be overturned.

Justice Belobaba don't really give me much legal precedent or rationale to chew on.
He seemed to think Premier Ford is a Dick which is all well and good, but I don't understand the legal reasoning behind decision.

Love it or Hate it;
The ability to change levels of representation is certainly within the scope of Government.

In this case the Municipal Elections Act is well within the scope of the Provincial Government, Section 3 of the act which defines the scope makes that pretty clear. There is nothing within that document I can find which would restrict, prohibit or otherwise limit the Provinces ability to make this change.

The ruling sets precedent as written which would effectively declare that the size of government is something that cannot be reduced under any circumstance as an "infringement of the Charter"?

Come on now.

The applicability of that as legal precedent to any similar reduction of government limits the ability of an elected government of any stripe to do what is within it elected mandate to do: Run the Government.

With that said;
The ruling timing blocks this legislation prior to the election so that the Province will not be able to react fast enough on appeal.

However the decision almost forces the Province to appeal and after Municipal Elections are done and the appeal is heard I would imagine that a higher court will in fact declare that Governments do in fact have say over matters they are responsible for.



it was a weird decision , as he was essentially saying a constituents constitutional rights would be violated if they were put into a larger council area or riding


but that sort of thing happens all the time , every number of years they re do the federal ridings and sometimes they eliminate smaller ridings where the population has dropped

no one has ever said that by doing so they'd be taking away constitutional rights from those people now put in a new riding


so the judges decision didn't seem to fit with past actions of past governments and what was allowed to be done when boundaries were changed
RCO





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PostPosted: Mon Sep 10, 2018 3:31 pm    Post subject: Reply with quote

cosmostein wrote:
Never a dull moment!

There is a delicious irony in the fact that the Notwithstanding clause was a concession made as part of the Kitchen Accord in order to get the Constitution signed by the Provinces so that Trudeau Sr. could bring the Constitution home.

There were other legal routes that could have been used to block Premier Ford's legislation, likely not any that would stick during the appeal process but some that were far less messy and more legally sound.

Essentially by using the Charter as the means for the ruling we are implying that having 47 members of City Council is a Constitutionally Protected right of the citizens of this nation. As I am sure those who passed the original Bill of Rights in 1960 intended :)

As such an equally ridiculous response such as the Nonwithstanding Clause on an issue that shouldn't of been a charter issue to begin with seems about right given the direction this is all taking.



not a legal expert as to what all is allowed by using the not withstanding clause but it would seem to be a way around the judges ruling


I'm surprised its never been used before in Ontario's history ,



it seems bizarre to me that the judge would turn municipal ward boundaries into a charter of rights and freedoms issue , were talking about a municipal election that maybe 40% of the people in Toronto would vote in to begin with


I wouldn't feel my charter rights were violated if I had one less city councillor in my area
Toronto Centre





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PostPosted: Mon Sep 10, 2018 3:35 pm    Post subject: Reply with quote

cosmostein wrote:
As some would accuse the original decision to cut the city council to 25 as reactionary and not well thought out, I would make the same assessment of the ruling today.


Agreed. None of it makes sense to me....yet.
cosmostein





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PostPosted: Mon Sep 10, 2018 4:14 pm    Post subject: Reply with quote

RCO wrote:

I wouldn't feel my charter rights were violated if I had one less city Councillor in my area


While the issue at hand may be Councillor's at present;
The precedent this sets for an enterprising lawyer is that reduction of availability of government or representation is now a charter violation.

You raised the point of an elector boundary being moved;
If all of a sudden you find yourself in a larger riding that you were in, it could be argued your access to representation has been reduced either by volume or proximity.

If I really want to play with the ruling and have some fun, if an MTO near my house closes due to Government action and now I need to drive significantly further to get my license plate sticker are my charter freedoms now being violated because my access to Government has been reduced due to the actions of Government?


Last edited by cosmostein on Mon Sep 10, 2018 4:16 pm; edited 1 time in total
cosmostein





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PostPosted: Mon Sep 10, 2018 4:15 pm    Post subject: Reply with quote

Toronto Centre wrote:
cosmostein wrote:
As some would accuse the original decision to cut the city council to 25 as reactionary and not well thought out, I would make the same assessment of the ruling today.


Agreed. None of it makes sense to me....yet.


Its also changing by the hour;
Its challenging for me to grasp the direction this is all heading in.

Should make for an interesting ride at least.
Bugs





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PostPosted: Mon Sep 10, 2018 4:37 pm    Post subject: Reply with quote

I'd put it another way -- this is such a bizarre ruling, made for obvious political reasons, and therefore, a contemptible abuse of judicial power -- that it justifies the inclusion of this clause in the first place.

I hope Ford uses it, and perhaps brings in legislation that compels judges to take a course in how the law is supposed to work ...
RCO





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PostPosted: Mon Sep 10, 2018 7:28 pm    Post subject: Reply with quote

( is john tory the worst politician in Canada rate now ? or does he just have the worst job having to be mayor of Toronto . now he is trying to get Justin trudeau involved in the current mess . not sure what the PM can do about a local municipal issue anyways ? )




John Tory‏Verified account @TorontosMayor · 27m27 minutes ago


Thanks to Prime Minister @JustinTrudeau for meeting with me tonight to talk about my concerns around the province's use of the notwithstanding clause. I appreciate his support for democratic principles, democratic institutions, and the importance of respecting cities.
RCO





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PostPosted: Tue Sep 11, 2018 7:25 am    Post subject: Reply with quote

LILLEY: Ford makes right call to trigger notwithstanding clause


Brian Lilley

Published:
September 11, 2018


Updated:
September 11, 2018 7:43 AM EDT


Filed Under:

Toronto SUN ›
Opinion ›
Columnists ›



Premier Doug Ford is about to use a sledgehammer to kill a fly.

Good.

Ford announced Monday he will recall the legislature to invoke the notwithstanding clause, Section 33 of the Constitution, to override a court decision striking down his government’s law to cut Toronto council nearly in half.

In making the announcement, Ford also warned activist judges he is prepared to do battle with them.

“I also want to make it clear that we are prepared to use Section 33 again in the future,” Ford said.

“We’re taking a stand, if you want to make new laws in Ontario or Canada, you first must seek a mandate from the people and you have to be elected.”

Sure his critics will denounce it as unfair and anti-democratic.


But how so? The notwithstanding clause is part of our Constitution and made for cases just like this one.

The court ruling that overturned Bill 5 is nothing short of a joke. Were there more time I would advocate appealing a decision this bad.

It’s a decision that hinges on “websites and pamphlets.”

In his 19-page ruling, Justice Edward Belobaba acknowledges the constitutional authority of the province to pass laws over municipalities, even “draconian” laws.

Meanwhile, the courts should overturn the constitutional authority of a duly-elected government only in the most compelling of cases. Belobaba didn’t have one so he invented one.

He ruled changing Toronto’s electoral boundaries violated the freedom of expression of voters and candidates.

If you are a normal person, your reaction might be ‘What the hell is he talking about?’

This is where websites and pamphlets come in.


Belobaba ruled that when Bill 5 took effect on Aug. 14, “…most of the candidates had already produced campaign material such as websites and pamphlets that were expressly tied to the ward in which they were running.”

Apparently the judge doesn’t think websites can be updated and new pamphlets printed.

He also claims voters’ rights to freedom of expression were violated because the changes would make the new wards too large with too many people.

That is not only a stretch, it is is an attempt to apply a part of the Charter that does not apply to municipal voting. Belobaba found that increasing ward size from an average of 61,000 to an average of 111,000, “breached the municipal voter’s right to cast a vote that can result in effective representation.”

Here the judge is trying to invoke Section 3 of the Charter that doesn’t apply to municipal elections.

What seems clear in reading the whole decision is that Belobaba did not approve of the content of Bill 5. His condescension drips throughout the entire ruling.



He makes leaps of logic to buy into the idea that changing ward boundaries is a Charter violation. He never fully explains why, just wants you to make the leap with him.

That is why Ford invoking the notwithstanding clause is the right move. Is it undemocratic?

“I was elected by 2.3 million people, he was appointed by one man,” Ford said of the judge.

On that, Ford is correct. As for it being an assault on the Charter, Section 33 is part of the Charter. Courts find violations of the Charter all the time and overlook them on a regular basis.

Ford is on the right track in shrinking Toronto city council. He’s also on the right track in using the constitutional powers at his disposal to do what’s best for Toronto residents and fix the city’s dysfunctional council.

— Brian Lilley is broadcaster, journalist, author and host of Beyond the News on Newstalk 580 CFRA

https://torontosun.com/opinion/columnists/lilley-ford-makes-right-call-to-trigger-notwithstanding-clause
Bugs





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PostPosted: Tue Sep 11, 2018 8:07 am    Post subject: Reply with quote

Lilley aside, the rest of the media seems largely against Ford's use of the clause.

The clause was put in the constitution because this sad document -- honored when handy, ignorned when not -- because the constitutions puts sovereignty in the hands of the Supreme Court. The "check and balance" on the Court is the notwithstanding clause -- pretty weak check and balance, since it is so rarely used.

The reason? Because the first use of the clause was to deprive the English-speaking people of Quebec with their long-standing common law language rights. Quebec, as you might know, is an officially unilingual province.

But the courts we have are so-oo bad ... need I raise to Ghomeshi trial again? Perhaps you'd like to look at the Picton trial as another illustration? (In that one, they kept a man in jail for six years because they didn't have enough evidence to convict!)

We even now have judges being run through a course that teaches them all the usual signs of lying etc, are not that when dealing with women suffering some kind of upset ... at male hands ... so the fact that they sent emails of love the day after the event that is now being reconstructed as a rape ... well, that's just normal raped-woman behaviour, look here, it's all science ... blah, blah, blah. The Courts will not release the teaching materials to the public.

The course is a test. We know that any judge that has sat through that tripe and got the job (a) is intellectually deficient, and (b) will do what he's told by the higher ups. So much for the 'independence of the judiciary' ... haw, haw, haw.
Bugs





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PostPosted: Tue Sep 11, 2018 10:11 am    Post subject: Reply with quote

Thank you, Cosmo, for laying out the thinking ...

I can at least see that as an argument. But what it really feels like is that the judge is looking for a reason to take an action he wants to take. It isn't that the evidence and the law leads him to take these steps. It's that his motives leads him to find justification in this argument, so he makes that judgement.

From the Ford end, it was a sloppy decision. It had to be or no decision at all but it came late and messed up some ambitions of people who probably didn't deserve it. It was not mentioned in the campaign. It is vulnerable to being put down to Ford's revenge, though I don't believe that myself. (It seems more a product of his experience rather than his bile.)

The judge certainly knows that there is no time to appeal, our legal processes being so glacial. This allows for a little 'lawfare'. What are the chances that this isn't shot down on appeal? Does the judge expect his decision to be backed up by higher courts, or overturned -- albeit, too late?

That's what we don't know. I suspect he knows very well that it's a weak argument and one that will lead to other legal claims of a dubious sort if accepted.

And that's a big problem. It means that, depending on motive, we have a judge that's willing to put barriers in the way of the government, possibly for partisan reasons.

Something has to be done. In gender crimes, judges are being compelled to go to a re-education camp that instructs them in how to treat evidence given from supposedly traumatized women ... it's 1984-ish on the preposterous scale.

Nobody seems to realize that it never stops. The definitions used in the law, the standards, 'are changed behind our backs for ideological reasons. "Rape" has morphed from someone-coming-in-the-bedroom-window incidents to "sexual harassment" ... a graduated scale that starts with anything of a vaguely sexual nature that makes a woman feel uncomfortable. What was merely rude is now criminal.

That's how "human rights" work, you know. They infiltrate the legal profession in a place like the Philippines ... and start a feeling, in the profession, that perhaps evidence gained by torture wasn't quite kosher. And, bit by bit, the Philippine courts start discounting evidence gained by torture.

This is what they have turned on us. They are changing the law in ways that are beyond Parliamentary control. I don't believe the judges are independent -- they seem to be in a career system, where there are promotions, etc all appointed by the government of the day ... the whole thing is being used in legal persecutions, nothing less.

It's a mess.
cosmostein





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PostPosted: Tue Sep 11, 2018 2:44 pm    Post subject: Reply with quote

Bugs wrote:

What are the chances that this isn't shot down on appeal? Does the judge expect his decision to be backed up by higher courts, or overturned -- albeit, too late?


Anything is possible;
However the way that I see this is if the goal was to block the change, the logical reasoning would have been to cite some ambiguous language in the Municipal Elections Act as why the changes were not allowed.

The issue there is as the Municipal Elections Act is a Provincial piece of legislation and nothing would prevent a quickie summer session to change the wording of the document.

Using the Charter takes the choice of the hands of the Government (in theory); its a ruling that requires appeal and challenges and ultimately the Supreme Court will sit back and determine if a Toronto City Councillor is such a critical cog in our democracy and freedom that their position must be protected under the Constitution.

I would imagine the Supreme Court (Especially this one) will keep with its tradition of ruling that Governments are allowed to act like Governments and have the powers to make changes to policy, procedure, and legislation that fall under their domain.

To not rule in that fashion would create such a potential nightmare for all aspects of Government. The ruling essentially implies that a reduction in representation is unconstitutional.

If that is the case for a minor political position like a city Councillor what about larger scope levels of government?

If a retiring Supreme Court Justice from Alberta is replaced with one from Ontario? Is that grounds for a reduction of representation?

What is a riding redistribution moves a voter into a riding that is larger in size than the one they were in prior?

What if access to a government service of any kind is reduced? moved? or eliminated?

The problem with the ruling is it create legal murk; it provides no clarity except for the matter at hand with no regard for its impact.

It is a ruling that is almost designed to be challenged and overturned.


Last edited by cosmostein on Wed Sep 12, 2018 10:05 am; edited 1 time in total
Bugs





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PostPosted: Tue Sep 11, 2018 10:36 pm    Post subject: Reply with quote

Just curious ... when was the last time that a judge at this level used the Charter to overrule a serious piece of legislation?

There was a lot more in that post than what you responded to. Surely you know about how legal definitions are changing, and surely you know that it is changing as a response to a demand for more convictions ...

You even shy away from accepting that this decision would be thrown out even while you list reason after reason that it's a boneheaded decision.

If the judge is using this as a pretext to sabotage a piece of legislation for his friends, it's a problem. If nobody will say it's a problem, that's another problem. As I said, this is not a decision that flow naturally from the complaint. It's the kind of decision that justifies a decision made for other reasons.

To my simple mind, one of the things about the law, particularly the criminal law, is that it ought to be predictable. A citizen ought to be able to know where the line is between an innocent act and a crime. We don't have that anymore.

Nobody wants to recognize that this is even happening. Nobody ever responds. I don't believe people don't see what I see. It's something else.
Bugs





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PostPosted: Wed Sep 12, 2018 9:18 am    Post subject: Reply with quote

Tasha Kheiriddin has a column up on this subject. It makes the same kind of argument that 'Cosmo makes but puts it in terms of an over-expansive definition of 'expression'. Cosmo does a better job.

https://globalnews.ca/news/4440077/tasha-kheiriddin-doug-ford-notwithstanding/

The headline writer says that ... Ford dropped a constitutional bomb on the nation. There's some 'expanded definition' for you.

What it means is that the judge doesn't have good judgement.

My construction is that he put his credibility on the line to do a political favour for someone, and he found a legal argument -- weak and strained -- to justify himself. He specifically excuses himself from the 'deeper analysis' because of the emergency!

If the public accepts this, it deserves what it gets.
cosmostein





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PostPosted: Wed Sep 12, 2018 10:00 am    Post subject: Reply with quote

Bugs wrote:

The headline writer says that ... Ford dropped a constitutional bomb on the nation. There's some 'expanded definition' for you.


The way the story is being weaved is that Ford is somehow usurping the Constitution;

The issue aside from declaring a reduction in Government a human rights violation evoking the Charter, the ruling also potentially overrides parts of Section 92 of the Constitution which pretty clearly defines the Provinces Powers.

In one fell swoop the ruling essentially left the door open for reduction in Government to be a violation of charter rights but also potentially restricted Provincial Powers allowed within Section 92 of the Constitution.

The Constitutional Pandora's box was opened by the ruling;
The mess we have in front of us isn't the Premiers mess.

He is just the one who has to clean it up.
Bugs





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PostPosted: Wed Sep 12, 2018 12:00 pm    Post subject: Reply with quote

This is what I mean ... again, you start be moderate, but as you point to the judgement, you almost start to giggle, it has so many perverse implications. Which says to me that the judge's judgement ought to be brought under public scrutiny.

If a judge asks the wrong question in a sex offence can be sent to a re-education camp (I refer to the defrocked Robin Camp -- https://www.theglobeandmail.com/news/national/knees-together-judge-robin-camp-makes-case-for-reinstatement/article36970201/) -- so why do such bizarre 'findings' not deserve public ridicule?

If this bird thinks he's really 'learned in the law' because the lawyers appearing before him say so -- none of whom are that sharp either -- it indicates he's pretty dim.

Reading the Constitution the way he did raises a question of competence. If he doesn't know the law, how are all the rest of us?

But of course he knows the law. He's using the law to advance a political purpose. He found an excuse -- a laughably bad one -- to do what he wanted, for whatever reason. And that's inexcusable.

He's like those American judges that rule that the Trump's enforcement of immigration law is 'unconstitutional' ... knowing they will be overruled three months later by a higher court. But in Canada, the legal profession doesn't do anything in three months (unless it's their deal). No money in that! The appeal process could be much slower.

/////////////////////////////////////////

I listened to Ford defend his move on a CBC interview, and he stood his ground. He admitted to being reluctant to use it, but his bigger intent was to get Toronto going, as the 'engine of Ontario' ... well, I wonder about that one ... it more like the financier of Ontario ... no dirty 'engine stuff' there! But the point is well taken.

He went from the gridlock in council about transit to traffic and gridlock on the streets. He listed off mayor after mayor who had tried to get mass transit working, at least in the 'grid city'. It was a non-partisan presentation, not really blaming an individual, but the size of the council itself as being part of the bottleneck.

I think it justifies him, whether it's honest or not. If this gets the city addressing the traffic problems in a realistic way, it will be Progress. They have to think about long-deferred maintenance at some point. The fact is -- the old Metro did better than the newly amalgamated city. Nothing has really been addressed since the new city was proclaimed.

Ford has won this one. The notwithstanding clause is being used justifiably because the ruling by the judge makes no sense to the common man. Does anyone think the governance of Toronto is 'democratic'. Do they think they can make themselves heard about what's important to them? Because, rightly or wrongly, they don't.

They think "What can you do?" And shrug their shoulders. 47 counsellors or 25 -- so what? Then they lean on their horn in frustration.

They aren't wrong. 25 or 47, when they go to see their representative, they will deal with a linguistically adept assistant who is an expert in public relations, and who will help process their complaint with an ersatz compassion. There's no difference for them.

They just wish they could find parking ...
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